In Radiomio Pty Ltd v Kendell; SISS Business Systems Limited v Kendell [2011] VSC 511 Gardiner AsJ set aside statutory demands under 459J of the Act, where there is some other reason, in addition to the claim there was a genuine dispute and offsetting claim, section 459G and H.

FACTS

The Defendant, Kendell, issued three statutory demands for $28,477.04 (182 demand) and $18,694.97 (184 demand) for fees and $93,349 (953 demand) pursuant to an incentive plan.

The factual matrix is quite complex and involved (see [17] – [23]). In short compass, prior to the service of the 182 and 184 demands Kendall served unsigned statutory demands and unsigned draft affidavits.  On 14 December 2010 Kendell served statutory demands claiming $54,868.94 and $46,741.10.  After these demands were served  a payment of $30,000 was made by the plaintiff.  On 25 December 2010 Kendell wrote to the plaintiff’s solicitor confirming that he had withdrawn previous statutory demands and that he had independently reviewed his invoices, arriving at different figures. On 30 December 2010 the 182 and 184 demands were served.  The plaintiff submitted that it was not safe for the Court to rely on Kendall’s affidavits because, inter alia, no explanation was given as to why the demands varied so much as to the amount demanded and that Kendall had previously sworn there was no genuine dispute as to the debt but had varied the sums demanded under subsequently sworn affidavits.

DECISION

Set aside for some other reason – Section 459J

Gardiner AsJ stated that because of the serious consequences associated with the service of statutory demands the accompanying affidavits have a real purpose in providing safeguards to the person serving the statutory demands which are potentially controversial.  He quoted Four Seasons Construction v Eastern Metropolitan Council regarding the purpose of affidavits, providing:

First, the corporation is advised Read the rest of this entry »

There is an interesting report in the Sydney Morning Herald today about a breach of privacy through a cyber attack at First State Super.  It provides:

First State Super customers have been left in the dark over a serious security breach at the company, saying they only learned through media reports that hundreds of thousands of accounts may have been exposed.

Acting NSW Privacy Commissioner John McAteer says the apparent decision to notify just a small portion of its customers rather than the entire database was not acceptable.

Yesterday it was revealed that First State Super, which has over $30 billion in funds under management, called the police on private security consultant Patrick Webster Read the rest of this entry »

Pam Dixon and and Robert Gellman just released a new report titled “Many Failures:  A Brief History of Privacy Self-Regulation in the United States”.

It is a very useful document and an interesting comparator to the Australian experience, in particular regarding self regulation in Australia.

The Office of the Privacy Commissioner tabled its annual report yesterday.  Privacy complaints rose 27% in 2011.  The annual report is found here.  The office’s media release says:

Privacy complaints made under the Victorian Information Privacy Act 2000 rose 27% in 2010-11 during which Privacy Victoria received 2,575 enquiries, including 345 that could potentially become a formal complaint. Of those 345 enquiries, 21% (73) were made into complaints after the complainant had unsuccessfully attempted to resolve the matter direct with the organisation complained of. This is the highest number of new complaints received in a reporting period since the establishment of the office in 2001.

Alleged inappropriate use and disclosure Read the rest of this entry »

In the Federal Court decision yesterday in Smallbone v New South Wales Bar Association [2011] FCA 1145 (6 October 2011) is a topical decision for barristers interested in the silk selection process.  More importatntly it is an important decision on the operation of the Privacy Act.

It has drawn some interesting coverage in the press including the Australian’s David Smallbone’s win could change silk selection process which provides:

AFTER his Federal Court victory yesterday over the NSW Bar Association, barrister David Smallbone believes fundamental change to the system of selecting senior counsel is inevitable.

And because of the nature of his win, Mr Smallbone Read the rest of this entry »